Land and Environment Court New South Wales Medium Neutral Citation: Pali v Costigan & anor; ; McBride & anor v Costigan & anor [2015] NSWLEC 1254 Hearing dates: 25 June 2015 Date of orders: 25 June 2015 Decision date: 25 June 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 25. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; risk of injury; debris; application upheld; orders for pruning and compensation. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Category: Principal judgment Parties: 20282 of 2015 Les Pali (Applicant) Alan Costigan (First Respondent) Nicky Costigan Second Respondent) 20283 of 2015 Dominic McBride (First Applicant) Jean McBride (Second Applicant) Alan Costigan (First Respondent) Nicky Costigan Second Respondent) Representation: Counsel: Les Pali, litigant in person (Applicant, 20282 of 2015) Jean McBride, litigant in person (Applicant, 20283 of 2015) Alan and Nicky Costigan, litigants in person (Respondents, both matters) Solicitors: File Number(s): 20282 of 2015 and 20283 of 2015 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. These applications are made by owners of two neighbouring properties in Kiama Downs against the owners of a third property. Both applicants share contiguous sections of a common boundary with the respondents. The applications seek orders for tree removal pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006. 2. Mr Pali (the Applicant in 20282 of 2015) seeks orders for the removal of two mature Eucalypts. Limbs have fallen from one tree, causing damage, and he is concerned that further limb failures may cause injury. He also seeks compensation for damage to a fence. 3. Mr and Mrs McBride (the Applicants in 20283 of 2015) applied for orders for the same two Eucalypts to be removed, as well as other trees along their section of the common boundary. In the period between the application being made and the onsite hearing, Mr McBride passed away. Mrs McBride presented submissions at the hearing, assisted by her daughter. 4. Mr and Mrs Costigan (the Respondents) value the trees and do not wish to remove them. 5. For ease of reference, a copy of a site plan prepare by the Costigans is included below. I have highlighted the two Eucalypts, Tree 1 and Tree 2. The vertical line extending west (up the page) from the Costigans' boundary indicates the location of the common boundary between the two applicants, with the Pali property to the south of that boundary and the McBride property to its north. Framework of the Act 1. For the Court to make orders, the Act requires at s 10(2) that the trees concerned have caused, are causing, or are likely in the near future to cause, damage to an applicant's property, or are likely to cause injury to any person. This jurisdictional test must be satisfied for each individual tree before orders can be made for it. The situation 1. There are two Eucalyptus botryoides (Bangalay) close to Mr Pali's common boundary with the Costigans: Tree 1 and Tree 2. There are several other trees along the common boundary shared by Mrs McBride and the Costigans: two tall Sheoaks and smaller trees including a Wattle, two Paperbarks, a Sheoak and three banana trees. The applications (both Pali and McBride) to remove Tree 1 and Tree 2 are based on the trees' history of limb failures and the applicants' contention that future limb failures are likely to cause injury or damage. The McBride application to remove other trees is based mainly on their extension over the boundary and the leaves and other debris they drop onto their property. 2. The Costigans stated that they planted the trees and maintain them regularly. They say the trees were there when the applicants purchased their properties. They have had a Council officer inspect the trees regularly and have always carried out any works that are required. The Costigans value the trees for the habitat they provide for birds and other wildlife, for the shade they provide, for shelter from the wind as well as screening of smoke from the neighbouring properties. They say the trees also provide them with privacy from the Pali property, which is on higher ground. They appreciate the vegetated nature of the local landscape. 3. In March of this year a limb fell from Tree 1, the largest Bangalay, onto the fence along the common boundary between the applicants' properties, damaging the latticework on top of the fence. This is not disputed. The Court's jurisdiction is therefore enlivened with regard to Tree 1. 4. According to the applicants the limb fell during a still day. Mr Pali has obtained a quote for $440 to repair the lattice. The Costigans have made no offer to assist the applicants with repairs or the cost of repairs. 5. The applicants also expressed concerns regarding the risk of fire associated with the proximity of trees to their dwellings. Findings 1. The Costigans have indeed attracted wildlife by providing habitat within the suburban landscape. There are species of birds and other fauna that might not be present without their efforts. 2. I appreciate Mr Pali's and Mrs McBride's concerns that trees in such an environment can, and often do, pose some risk. 3. The onsite hearing allowed inspection of all trees. No expert reports have been filed as part of, or in response to, the applications. Bringing my own arboricultural expertise to the matter, I observed structural problems with both Tree 1 and Tree 2, but I am not convinced that these trees, or any of the other trees within the applications, require removal. The risk of limb failure from Trees 1 and 2, and the resulting risk of injury, can be minimised by pruning. In my view, both trees pose a risk of injury to people within the applicants' properties, so the Court can make orders for both trees. 4. Tree 1 has a recent history of limb failure. Trees of this species can be outstanding specimens when structurally well formed, but when they develop poor form, such as Tree 2 with its multiple defects, they can pose a higher risk. 5. The stem of tree 1 forks a few metres above ground level. The fork is narrow and contains included bark. The large limb rising from this fork extends over both applicants' properties. It is from a point higher on this limb that the smaller limb broke off in March, damaging the applicants' fence. This is not the only failure from this limb, as can be seen from other branch stubs that remain. The limb is large and with further growth will only extend further over the applicants' properties. Due to its form and its attachment to the stem, I am of the view that it poses a risk of damage to the applicants' properties and a risk of injury to those within the properties. Reduction pruning would not sufficiently reduce the risk, so the limb requires removal back to its attachment at the stem. 6. A smaller limb above the one just described extends over the applicants' properties. It will be more exposed once the limb beneath is removed, so should also be removed to avoid its failure. Any large deadwood should also be removed, as this may cause injury if it falls, especially as Mrs McBride's clothesline is beneath the tree. Orders for regular pruning will be made to prevent similar hazards recurring in future. I have not had the benefit of an aerial inspection of the tree; the view of limbs from the ground is limited to their undersides and partly obscured by other limbs. For this reason, in case other limbs are found to be hazardous, the arborist carrying out the pruning orders will have the discretion to identify and remove any other hazardous limbs as she or he sees necessary. 7. The large limb branching from the lower part of Tree 2's stem also extends over the McBride property. The limb's structure and form are poor and it is, in my view, likely to fail and cause damage to the McBride property. The remainder of the tree's crown is entirely over the Costigans' property and poses no significant risk to the applicants' properties. 8. I saw no structural defects within the other trees that worry Mrs McBride. They appear unlikely to cause damage to her property in the near future, or injury. She is concerned that they drop large amounts of debris on her property, with twigs falling on her clothesline and leaves and twigs falling into and blocking her roof guttering, particularly from the Sheoaks. While I appreciate the nuisance this causes Mrs McBride, the mere presence of such debris from the trees is not damage and does not enliven the Act's jurisdiction. If corrosion of gutters results, or they overflow and cause water damage, this would be damage that is preventable through maintenance. The Commissioners in Barker v Kyriakides [2007] NSWLEC 292 (at paragraph 20) stated the following principle. For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. 1. There is nothing so extreme about this matter that would lead me to deviate here from this well-established principle. 2. Regarding the applicants' concerns about fire, the risk of fire damage to property is different from damage caused directly by trees, as discussed in Freeman v Dillon [2012] NSWLEC 1057 at paragraph 86. 3. To some extent the risk of limb failure from Tree #1 was foreseeable, so it is reasonable that the cost of repairing fence damage caused by the limb failure in March falls to the Costigans. The quote obtained for repairing the lattice atop the fence will suffice for determining compensation. The onus is on Mr Pali to organise and pay for repairs to the fence. 4. Should the situation regarding the Sheoaks or other trees change, for instance should any hazardous branches develop over Mrs McBride's property, she is able to make a new application to the Court. Orders 1. Orders (1) to (7) made below apply to both matters. Order (8) applies only to Pali v Costigan & anor (20282 of 2015). The following photographs were taken by me at the hearing and are included here to assist with clarity of the orders. 1. The Court orders that: 1. The application is upheld. 2. Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with appropriate insurances to carry out the following works: 1. Prune Tree 1 to remove the large low western limb, back to its collar at the stem. 2. Prune Tree 1 to remove the higher limb that extends over the neighbouring pool to the west. 3. Prune Tree 2 to remove the large limb to the west back to its collar at the stem. 4. Prune both Tree 1 and Tree 2 to remove deadwood >25 mm diameter and hazardous limbs identified by the arborist carrying out the works, where the deadwood or hazardous limbs extend beyond the common boundary to the west of the trees. 1. The works in (2) must conform to the guidelines of AS4373 Pruning of amenity trees and the WorkCover Code of Practice for the Amenity Tree Industry. 2. On reasonable notice of at least one week, the applicants are to allow access for the arborist to carry out works in (2) during reasonable hours of the day. 3. Every two years during the month of July, beginning July 2017, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with appropriate insurances to prune both Tree 1 and Tree 2 to remove deadwood >25 mm diameter and hazardous limbs identified by the arborist carrying out the works, where the deadwood or hazardous limbs extend beyond the common boundary to the west of the trees. 4. The works in (5) must conform to the guidelines of AS4373 Pruning of amenity trees and the WorkCover Code of Practice for the Amenity Tree Industry. 5. On reasonable notice of at least one week, the applicants are to allow access for the arborist to carry out works in (5) during reasonable hours of the day. 6. If within 60 days of the date of these orders Mr Pali presents the Costigans with a copy of a paid and receipted invoice for repairing the lattice section atop the fence on his northern boundary, the Costigans are to pay Mr Pali the sum of $440 or the amount in the receipted invoice, whichever is less, within 90 days of the date of these orders. If no such copy of a receipted invoice is received by the Costigans within 60 days of the date of the orders, this order lapses. ____________________________ D Galwey Acting Commissioner of the Court ********** Amendments 03 August 2015 - Removal of address DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2015